Hempsted v. Wisconsin Marine & Fire Insurance Co. Bank

Taylob, J. After reading the objections made by the appellant, it seems to us very clear that the matters stated would not, if proved, prevent the insolvent from obtaining a discharge from his debts in the manner prescribed in secs. 12,13, and 14 of said ch. 385, Laws of 1889. 1 Whether [379] the matters stated, would be sufficient to prevent such discharge from defeating an action upon the claim made by the defendant against the insolvent is another question, and one which need not be determined in this case. It seems very clear to us that the fact that the applicant for a discharge under this chapter has been guilty of forgery, obtaining goods or money under false pretenses, or has incurred liability for a trespass or assault and battery, is no objection to his obtaining his discharge under said act from his debts due upon contract to his creditors. If it should be held, when a proper case is presented, that liabilities of the nature of the one claimed by the bank can be discharged under these proceedings, then the demurrer was properly sustained; and, on the other hand, if it shall be held that such liabilities cannot be discharged under said proceedings; then the objections to the petitioner’s discharge are insufficient, and the demurrer must also be sustained. [380] 1 It is further urged that the law is unconstitutional, and therefore the proceedings should be discharged. That question was not raised by the objections filed; still it may be urged in this court. The appellant may, under the rules of pleading, upon a demurrer to his answer, attack the sufficiency of the complaint. So, in this case, if the petition of the respondent is founded upon an unconstitutional law, it may be attacked by the appellant for that cause. We think, however, that there can be no serious doubt as to the constitutionality of this insolvent law so far as it applies to creditors residing in this state, and so far as it is applicable to such creditors whose debts have accrued since the passage of the act. Whether it will bind parties not residents of this state, upon debts contracted with them, or whether the insolvent can be discharged from his debts incurred prior to the enactment of the law, are not questions in this case. As to the constitutionality of state insolvent laws, see Baldwin v. Hale, 1 Wall. 223, 234; Kelley v. Drury, 9 [381] Allen, 27; Ilsley v. Merriam, 7 Cush. 242; Fessenden v. Willey, 2 Allen, 67; Guernsey v. Wood, 130 Mass. 503. This court has in several cases recognized the validity of the old insolvent law ©f this state. See In re Mabbett, 73 Wis. 351 ; Smith v. Smith, 19 Wis. 103; Read v. Bennett, 23 Wis. 372; Mowry v. White, 21 Wis. 417; Sexton v. Mann, 15 Wis. 162. There is nothing in the record in this case, as presented to this court, which informs the court when or where the debt was incurred, and until that is made to appear we may presume that the creditor is a citizen of this state, and that the liability was incurred after the enactment of the law under which the debtor is proceeding. If the appellant appears on the schedules of the respondent filed in said proceedings as one of his creditors, and it is of the opinion that its claim is of such a nature as cannot be affected by such proceedings, it might perhaps show that fact on the hearing, and ask the court to strike its claim from the schedules in the case, so as to prevent a formal discharge thereof under the proceedings; but that fact, as said above, furnishes no reason for dismissing the respondent’s proceedings for a discharge as to his other creditors who have claims against him which may be discharged by the order of the court in such proceedings. By the Oourt.— The order of the circuit court is affirmed, and the cause is remanded for further proceedings.